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In 1994, an armed conflict between the Rwandese government forces and the Rwandese Patriotic Front and the genocide perpetrated against the Tutsis claimed the lives of hundreds of thousands of citizens in Rwanda and the elimination of approximately 75% of the Tutsi population.

Joseph Mpambara was a member of the interahamwe militia who fled Rwanda for Kenya and finally the Netherlands after 1994. He is charged with having murder, rape, kidnapping, hostage taking and torture against several Tutsi individuals including young children who were hacked with machetes after being forced out of an ambulance with their mother. Since the Accused is a non-Dutch national and the crimes with which he is charged did not occur on Dutch territory and did not implicate Dutch nationals in any way, the question of jurisdiction arose.

In the present decision, the Supreme Court of The Netherlands rejected the appeal of the Public Prosecutor against the earlier decision of the Court of Appeal of The Hague. The Supreme Court confirmed that Dutch Courts have no jurisdiction over the crime of genocide allegedly committed by the Accused. This does not, however, bar prosecution of the Accused for war crimes and torture.

Mr Salih Mustafa, a former commander of the Kosovo Liberation Army (KLA), was accused of four war crimes including arbitrary detention, cruel treatment, torture, and murder. For three weeks in August of 1999, Mr Mustafa and his subordinates imprisoned six civilians in a barn at a compound held by the KLA in Zllash, Kosovo.  

The court found, through the testimony of the five detainees who survived, that Mr Mustafa and his men subjected the detainees to inhumane conditions and treatment. The detainees were beaten with batons and hatchet handles, burned, electrocuted, threatened, and given urine when they complained of thirst. The court found that Mr Mustafa and his subordinates committed these acts against these victims together as part of a joint criminal enterprise. Their actions and refusal to provide medical care to the victims even led to the death of one of the detainees.

The court convicted Mr Mustafa of the war crimes of arbitrary detention, torture, and murder. The court found that the crime of cruel treatment is included in the crime of torture so it would be unnecessary to convict the accused of both crimes. The court sentenced Mr Mustafa to 26 years imprisonment  and ordered him to pay reparations of €207,000 to the victims.

On 11 April 2000, a Belgian investigating judge of the Brussels Tribunal of First Instance issued an arrest warrant in absentia against the incumbent Minister for Foreign Affairs of the Democratic Republic of Congo (DRC), Abdulaye Yerodia Ndombasi, charging him with offences constituting grave breaches of the Geneva Conventions I–IV (1949); Geneva Conventions Additional Protocol I (1977); Geneva Conventions Additional Protocol II (1977), and crimes against humanity. In the warrant, Mr Yerodia was accused of inciting racial hatred in various speeches in the DRC in August 1998, which had contributed to the massacre of several hundred persons and, thus, he was charged as perpetrator or co-perpetrator of these crimes. The arrest warrant, which asked States to arrest, detain, and extradite Mr Yerodia to Belgium, was transmitted to the DRC in June 2000 and simultaneously circulated internationally through Interpol. On 14 February 2002, the International Court of Justice ruled that the issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the DRC in that Belgium failed to respect, and infringed, Mr Yerodia’s immunity as Minister for Foreign Affairs and the inviolability enjoyed by him under international law. The Court required Belgium to cancel the arrest warrant and inform as such the authorities to whom it was circulated.

Omar Ahmed Khadr was 15 years old when he was captured by United States forces in Pakistan in 2003 and transferred to detention at Guantanamo Bay, Cuba. His first trial before a military commission was due to proceed until the United States Supreme Court ruled that such commissions were unlawful. Following Congress’ enactment of the 2006 Military Commissions Act, Khadr was again charged and due to stand trial before the new military commissions for conspiracy, murder, attempted murder, spying and material support for terrorism for his alleged involvement with Al Qaeda.

The present decision is the result of a motion by lawyers for Khadr attempting to halt the proceedings by arguing that the military commissions have no jurisdiction to try child soldiers. The motion was rejected by the Judge on the grounds that nothing in customary international law or international treaties, or indeed in the text of the Military Commissions Act bars proceedings against child soldiers for violations of the laws of war. This decision paved the way for Khadr’s trial to begin in October 2010. It concluded following a plea arrangement in which Khadr pleaded guilty to the charges and received an 8-year sentence. He has recently been transferred to his native Canada to carry out the remainder of his sentence. 

In July 1995, the safe haven of Srebrenica in Bosnia and Herzegovina was attacked by Bosnian Serb forces resulting in the deaths of between 8 000 and 10 000 individuals. Members of the Dutch battalion who were responsible for the safeguarding of the enclave were completely overrun by the forces of General Mladic. In 2007, a civil action was filed before the District Court of The Hague by 10 women whose family members died in the genocide as well the Mothers of Srebrenica, a Dutch association representing 6 000 survivors. They are demanding compensation from the United Nations and the Kingdom of the Netherlands by alleging that both are responsible for the failure to prevent the genocide at Srebrenica.

In the present decision, the Supreme Court upheld the earlier decisions of the District Court of The Hague and the Court of Appeal of The Hague confirming that the UN enjoys absolute immunity from prosecution, even in light of the gravity of the accusations alleged by the Mothers of Srebrenica.